District Court of NSW|2008-03-06|Before: Hunt J

Introduction

This is an application by the defendants to strike out the plaintiff's defamation proceedings as an abuse of process.

The plaintiff by way of Statement of Claim filed on 21 June 2006 brought proceedings against the defendants for defamation for three broadcasts on the defendants' radio stations on 18 August 2005.

The imputations pleaded as arising are set out in the Amended Statement of Claim and are as follows:

The John Laws Broadcast 3(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 3(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 3(c) The Plaintiff is a bludger. 3(d) The Plaintiff is dishonest. 3(e) The Plaintiff is dishonest because he is trying to get himself a disability pension even though he is so fit he can run in the City to Surf and beat 40,000 people. 3(f) The Plaintiff is knowingly bringing a false claim for Centrelink benefits. 3(g) The Plaintiff falsely claimed he was depressed. 3(h) The Plaintiff falsely claims he was physically tortured by US soldiers during his time at Camp X-ray. 3(i) The Plaintiff is a moron. 3(j) The Plaintiff should be in gaol. 3(k) The Plaintiff could be an insider working for al Qaeda. 3(l) The Plaintiff was doing something shady when he was in Afghanistan which he should not have done. 3(m) The Plaintiff is the sort of person who will not tell the truth. 3(n) The Plaintiff should be condemned for not telling the truth. 3(o) The Plaintiff should be condemned for seeking a disability allowance. 3(p) The Plaintiff may have received money from al Qaeda to work as an insider. 3(q) The Plaintiff does not want strict terror laws because he is a suspected terrorist. 3(r) The Plaintiff conducted himself in such manner about being disabled and needing a disability pension that he should be deported.

The Steve Price Broadcast 5(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 5(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 5(c) The Plaintiff is a bludger. 5(d) The Plaintiff received a pension when he was not entitled to it. 5(e) The Plaintiff is a leech on Australia. 5(f) The Plaintiff falsely claims he is suffering clinical depression because he was able to run in the City to Surf in fast time. 5(g) The Plaintiff should be condemned for seeking a disability pension.

The Ray Hadley Broadcast 7(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 7(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 7(c) The Plaintiff is a bludger. 7(d) The Plaintiff demanded access to disability support pension to which he was not entitled. 7(e) The Plaintiff is a grub who does not deserve a disability pension. 7(f) The Plaintiff should be condemned for seeking a disability pension. 7(g) The Plaintiff is an idiot. 7(h) The Plaintiff is dishonest because he is trying to get his hands on a disability pension to which he is not entitled. 7(i) The Plaintiff falsely claims he suffers clinical depression. 7(j) The Plaintiff is trying to live off taxpayers by applying for a disability pension to which he is not entitled. 7(k) The Plaintiff falsely claims he is unfit to work. 5. Although the three broadcasts were transmitted on the same day, none of them refers to the others. Each of them refers to an article in the Daily Telegraph that day. The article in the Daily Telegraph is set out as a schedule to this judgment.

The plaintiff initially commenced proceedings in the Supreme Court, but only against the publisher of the Daily Telegraph article, Nationwide News Pty Limited. The plaintiff lost these proceedings on 24 May 2006 after a jury answered s 7A questions in the negative.

The proceedings the plaintiff brought in the Supreme Court were not limited to this article. The plaintiff also claimed damages for the three broadcasts he now sues upon in this court. The broadcasters sued in these proceedings were not parties to the Supreme Court proceedings. The claim against Nationwide News Pty Limited concerning liability for their broadcasts was a claim for republication, not publication.

However, the plaintiff and Nationwide News Pty Limited, in the s 7A jury trial in the Supreme Court, by agreement, only put the Daily Telegraph article to the jury. The parties' legal representatives told the trial judge that the other three publications were, after the s 7A jury decided what the imputations in the Daily Telegraph article were, to be the subject of judicial rulings on the issue of republication.

As the jury's answers to the s 7A questions resulted in verdicts for the defendant, no such rulings were ever sought, and judgment was entered for the defendant Nationwide News Pty Limited on all imputations.

Can the plaintiff now bring proceedings in this court against the defendants as publishers in this court?

The proceedings against Nationwide News Pty Limited in relation to the publications the subject of the District Court proceedings

It is necessary to set out a summary of the pleadings for the claim brought by the plaintiff against Nationwide News Pty Limited in the Supreme Court of New South Wales (no. 20350 of 2005).

The plaintiff pleaded his causes of action for damages in respect of four publications, with identical imputations pleaded as arising from each publication. The first of these was the Daily Telegraph; the other three publications were the three broadcasts which are the subject of these proceedings.

The imputations pleaded for each publication were: (a) the plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled; (b) the plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. (A third imputation, "the plaintiff is a bludger", was abandoned on 5 December 2005, according to a note on the pleading attached to the affidavit of Mr Bourke of 16 August 2006.)
The three broadcasts were described in the plaintiff's pleadings (paragraph 10 of the Amended Statement of Claim) as repeating "the essence of what was contained in [the Daily Telegraph publication] and the imputations" and the action against Nationwide News Pty Limited included a claim of liability for republication of these three broadcasts on the basis that the publisher of the Daily Telegraph had "caused to be published" the three radio broadcasts.

The circumstances in which a defendant may be liable for a subsequent republication of defamatory matter originally published by him are helpfully summarised at [5330] et seq of Tobin & Sexton Australian Defamation Law and Practice. As all who participate (or arguably participate) in the commission of a tort are jointly and severally liable, the plaintiff often has a choice as to the appropriate defendant to sue. The fact that the plaintiff may have a choice between a number of joint tortfeasors is a matter that may be of great significance in a practical sense; one or more of the potential defendants may have no assets, or have made the publication on an occasion protected by absolute privilege. Defendants cannot dictate to a plaintiff who should be sued, as Bridge LJ explained in Goldsmith v Sperrings [1977] 1 WLR 478 at 507.

In bringing proceedings only against the Daily Telegraph's publishers, the plaintiff was, Mr Evatt agreed in oral submissions, seeking the tactical advantage of only having one opponent (instead of three) in the s 7A jury trial. As these publications all occurred before 1 January 2006, a s 7A jury had to determine whether each of the matters complained of conveyed the two imputations pleaded and whether they were defamatory.

It is a matter of general notoriety that s 7A jury trials in the Supreme Court have resulted in a number of verdicts subsequently set aside by the Court of Appeal as perverse. (This factor, and the expense and delay caused by a two-part trial process, led to their abolition in the Defamation Act 2005 (NSW).) The tactics of how to run such a trial are complex. It is readily understandable that a plaintiff may prefer to have the jury hear only one address from one defendant rather than three addresses from three separate defendants. Whatever the reason, the course of conduct adopted by the plaintiff was to sue one defendant only, and to put only the Daily Telegraph publication to the jury.

The s 7A defence filed by Nationwide News Pty Limited (Exhibit 2) contains the same traverses of capacity to convey and defamatory meaning for each of the four publications.

According to Exhibit D in these proceedings, Mr Evatt, counsel for the plaintiff, accordingly answered an inquiry from the s 7A trial judge, his Honour Justice Kirby, about whether a cassette player would be required by saying the following: "EVATT: Your Honour's Associate asked whether we would require a radio. I said it would not be a radio but a cassette player, however we will need neither because the three broadcasts are republication [sic], so the issue for the jury is only the Daily Telegraph article."
Mr Reynolds SC, for the defendant, then said "I agree".

Questions for the jury (Exhibit C) were made available. These questions asked the jury to determine the question of whether each of the imputations was conveyed by the Daily Telegraph and whether each was defamatory.

Issues of republication did not go to the jury because the parties considered issues concerning republication should be dealt with in the manner set out in Griffith & Ors v Australian Broadcasting Corporation & Ors [2003] NSWSC 298. The plaintiff in those proceedings sued the Australian Broadcasting Corporation and a Mr Milliken for publications that were subsequently made available to schools as educational material. The schools were not joined as defendants. Levine J held that disputed issues of fact about the defendants' liability for republication of the matters complained of to schools were issues for determination by the trial judge, not by the jury.

In Griffith the actual publications were made available to the schools, but identical form is not a prerequisite for republication. In the present case, the broadcasts were not identical to the original publication, but the content of the Daily Telegraph was summarised and commented upon. The imputations pleaded to arise from each of the publication were the same, and it is the imputations that were the cause of action in proceedings under the Defamation Act 1974.

After hearing submissions, the jury returned. They answered "no" to the questions about whether the imputations were conveyed. On 24 May 2006 Kirby J ordered a verdict for the defendant in respect of each imputation and judgment for the defendant in the action with costs. However, on 25 May 2006, Kirby J made a costs order but also vacated order (2) and stood the issue of republication over for further hearing to July 28 2006. That hearing was subsequently vacated because the plaintiff took three steps: (a) he appealed the jury decision (unsuccessfully: Habib v Nationwide News Pty Ltd [2007] NSWCA 91) by filing a Notice of Appeal in June 2006 and when he failed in this appeal, unsuccessfully sought leave to appeal to the High Court; (b) he commenced these proceedings on 21 June 2006; and (c) on 20 September 2006 his solicitors wrote to the solicitors for the stating the Plaintiff discontinued all three republication counts. The plaintiff and defendant have now on 6 March 2008 signed a consent judgment for the defendant with costs, terminating the Supreme Court proceedings.

This consent judgment (Exhibit 1) provides as follows: (1) Verdict for the defendant in respect of each pleaded imputation. (2) Costs for the defendant.
The defendants in these proceedings filed on 18 August 2006 sought orders that the proceedings be struck out as an abuse of the court pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 14.28 or in the alternative the proceedings be stayed until the Supreme Court proceedings issues (namely the status of the proceedings still remaining before Kirby J and the outcome of the Court of Appeal hearing) were determined. By agreement, the argument was deferred until the plaintiff's unsuccessful application for leave to appeal to the High Court (Habib v Nationwide News Pty Limited [2007] HCATrans 802 (14 December 2007)) and entry of final orders in the Supreme Court (which finally occurred on or about 6 March 2008).

The defendants submit: (a) By foregoing any opportunity for a jury hearing in the Supreme Court proceedings, the plaintiff was limiting his case to damages (paragraph 6, written submissions). As the jury found there were no imputations conveyed by Nationwide News Pty Limited, the whole action, including any claim for damages for republication failed. The Supreme Court was therefore "functus" and Kirby J's listing of the matter for argument was in error as there was no issue left to resolve after the jury's answers (paragraph 9).

(b) Alternatively (paragraphs 16 - 22 of the written submissions), commencing proceedings in this court while there were proceedings in the Supreme Court (and an appeal therefrom) amounts to an incurable abuse of process because the plaintiff had a "complete remedy" in the Supreme Court: Williams v Hunt [1905] 1 KB 512 at 514; Maple v David Syme & Co Ltd [1974] 1 NSWLR 290; Meckiff v Simpson [1968] VR 62. The defendants point to the fact that the plaintiff is seeking damages for the same cause of action as he sought in the Supreme Court proceedings. It is submitted that he cannot retrospectively change the character of his damages claim in the Supreme Court from one seeking damages for four publications arising solely from the Daily Telegraph to one seeking damages for three publications from the defendants. He should not be able to sue in two places for the same damage. The defendants also rely upon Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(b) and argue that since the plaintiff recovered no damages in his Supreme Court action, he can recover no greater damages than he did in the Supreme Court, assuming, contrary to the defendants' submissions, that they are not an abuse of process: Arthur Harris v 718932 Pty Ltd (2003) 56 NSWLR 276 at 280.

The plaintiff and defendant have now entered into a consent judgment, and this argument appears to have been abandoned. In any event, if proceedings had wrongly been commenced in this court while other proceedings were still on foot in another court, and those proceedings were later discontinued or concluded, this cannot render these proceedings so tainted by irregularity as to require their being permanently stayed.

(c) Thirdly, the defendants suffer prejudice in that they cannot seek contribution against Nationwide News Pty Ltd because they have the benefit of a jury finding in their favour: James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78 at [40]. Only after the plaintiff lost against this defendant did he come to the District Court to commence proceedings. This creates irreparable prejudice: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd [1992] 35 FCR 406 at 418.8.

(d) Fourthly, these proceedings are an abuse by reason of the principles of law set out in Anshun ( Port of Melbourne Authority v Anshun (1981) 147 CLR 589 at 602); see Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404.

A stay was sought by the defendants (paragraph 31 written submissions), and granted, until the determination of the Court of Appeal and High Court applications. (Unfortunately, these republication issues were not brought to the attention of the Court of Appeal at the time, which might have avoided what seems certain to be a second visit.) The matter was finally argued before me on 27 March 2008 after the plaintiff sought an adjournment on 6 March 2008.

The oral submissions were short. Mr Lynch, for the defendants, referred me to his written submissions (which consist substantially of a recitation of factual material) and provided me with two folders of decisions. Mr Evatt frankly acknowledged that whatever my decision, the complex questions of law meant that this application would inevitably be the subject of appeal. He inquired if there was an equivalent of the now repealed Part 12 r 2 (Removal to the Court of Appeal) of the Supreme Court Rules 1970 (NSW) which permitted complex questions of law to be remitted by the Supreme Court direct to the Court of Appeal, and his submissions were even briefer than those of Mr Lynch.

Since both parties appear to anticipate developing their arguments in more detail on appeal, I have dealt with their arguments in a similarly brief fashion.

There are two additional matters to which I have had regard which was not the subject of submissions. After the oral submissions I heard on 27 March, the Court of Appeal handed down Dennis v Australian Broadcasting Corporation [2008] NSWCA 37) about the statutory duty imposed on courts in civil procedures generally (by the Civil Procedure Act 2005 (NSW)) and by the Defamation Act 1974 (NSW) (and 2005) in particular. As a number of the arguments of the defendants foreshadowed this timely decision, it does no injustice to consider it, and I have incorporated the contents of this decision into this judgment. The second matter is that in addition to provisions in the Defamation Act 1974 relied on by the defendants as being procedures to prevent abuse of process, I have added s 9(6), since this provision specifically mentions abuse of process.

The central issue of fact is the circumstances in which the plaintiff originally brought proceedings concerning these three radio broadcasts as part of his unsuccessful claim against Nationwide News Pty Ltd.

Why did the issue of whether imputations were conveyed by three radio broadcasts not go to the Supreme Court jury?

The reason the three radio broadcasts did not go to the jury was by the agreement of the parties. As the documents from the Supreme Court jury trial that were tendered show, the trial judge, Kirby J, was told that these publications were not to go to the jury because they were "republications".

The decision of Levine J in Griffith that disputed issues of fact are matters for the judge but not the jury was an eminently practical one, given the complexity of s 7A jury trials. Issues of whether the republication is the natural and probable consequence were historically matters for the jury to determine: Ronald v Harper (1910) 11 CLR 63 at 77; Williams v John Fairfax Group Pty Ltd (Supreme Court of New South Wales, 20 November 1991, Hunt J, unreported); a republication claim (including imputations conveyed) went to the jury without comment by the Court of Appeal as recently as Jones v Sutton (2004) 61 NSWLR 614. In my view, all issues of publication, including disputed issues of fact such as identification or republication, must fall within s 7A, and the correctness of the ruling in Griffith is open to consideration. It makes no sense to have a jury determining disputed issues of fact about identity but not about republication (and what is to happen if the republication also includes disputed facts about identity?). As it happens, though, that is not the problem here, because the parties acted as though the fact that there was a republication meant that the jury never saw the publication at all.

There is nothing to support the defendants' claim that the plaintiff in the Supreme Court proceedings was only relying upon the other three publications as going to damages. The information given to the trial judge was that the jury was to determine the issue of the imputations in the first matter complained of but that as the other three causes of action were republications, they would not be determined by the jury but by Kirby J, the trial judge.

The question before Kirby J, if the jury had found one or both of the imputations conveyed, was whether each of the broadcasts conveying the imputation(s) did so as a natural and probable consequence of the original publication (Speight v Gosnay (1890) 60 LJQB 231).

It is arguable that republication of a story of a sensational nature is the natural and probable consequence of its original publication in a particular newspaper: McWhirter v Manning ("The Times", 30 October 1954); Tobin and Sexton at [5385]. An analogy commonly used is the politician who makes a statement at a press conference where the natural and probable result of his doing so is that his statement will be republished in the media: Sims v Wran [1984] 1 NSWLR 317 at 320.

The particulars in the Supreme Court statement of claim set out that the article in the Daily Telegraph was of a sensational nature, making attention-getting allegations about the plaintiff, a person the subject of widespread media publicity, and that the Daily Telegraph publishers knew this article would be likely to be read by radio commentators.

Liability of an original publisher for a republication in altered form or where there is significant added material will depend on the degree to which there is a material difference.

The reason these issues were before Kirby J, the s 7A judge, was that his Honour had to deal with the republication issue as part of the s 7A trial. In other words, these republications formed part of the proceedings as to the issue of publication, but in circumstances where the parties had agreed that this part of the publication issue would go to the trial judge and not the jury. If the contents of these publications went only as to damages, then they would have been irrelevant to the proceedings before Kirby J because they would only have formed part of the later trial on liability and damages.

Having noted how the Supreme Court trial was conducted, I now turn to a consideration of the defendants' claim that the bringing and maintaining of these proceedings is an abuse of process.

In State Bank of NSW Ltd v Stenhouse & Ors (Supreme Court of New South Wales, 18 February 1999, unreported) Giles CJ Comm D (as his Honour then was) set out seven factors which could be of assistance when determining whether proceedings are an abuse of process: (a) the importance of the issue in and to the earlier proceedings; (b) the opportunities available, and taken, to litigate the issue; (c) the terms and finality of the findings as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) evidentiary matters such as fresh evidence; (f) the extent of oppression or unfairness; and (g) the overall balance of justice to the alleged abuser against the matters supportive of abuse of process.

Although there are additional factors to take into account in defamation actions, this is a very helpful checklist.

Whether or not proceedings may amount to an abuse will depend very much on the particular circumstances of the case. The guiding concerns are oppression and unfairness to the other party as well as concern for the integrity of the system of administration of justice. However, the cases repeatedly warn that the jurisdiction to strike out for want of prosecution must be used sparingly and in exceptional circumstances.

The first issue is whether it is an abuse of process to bring proceedings over a publication which contain imputations largely identical to those in the article (which the jury found not to be conveyed).

A comparison with the publications by the defendants in these proceedings with the publication in the Daily Telegraph shows that these are not successive actions for the same publication by the same defendant of the kind that were before the Court of Appeal in Lee v Kim [2006] NSWCA 384. The Court of Appeal set aside a granting of leave to bring a second action under section 9(3). This section may have been invoked by Nationwide News Pty Limited if fresh proceedings had been commenced against it, either for republication of these broadcasts, or possibly for other similar but not identical publications (Lee at [24], [29]).

I should first consider whether, if the proceedings in the Supreme Court had only been brought in relation to the Daily Telegraph article (with no claim for republication), the defendants could have brought this application.

The similarity between the publications and imputations is not, of itself, sufficient to amount to grounds for a stay. In The Age Corporation v Beran [2005] NSWCA 289 Hodgson JA said at [50]: "We have not been referred to any case where proceedings have been stayed or dismissed because of the failure of earlier proceedings against another party in respect of a different published item, purely on the basis of similarity of material in that item to material in the item complained of in the later proceedings."

In Beran the Court of Appeal dismissed an appeal from a decision of Ashford DCJ where her Honour had declined to stay proceedings against The Age which pleaded imputations arising from an article similar to an article in the Sydney Morning Herald where a verdict had been entered for the defendant. Six of the imputations were identical, a situation similar to the present.

The Court of Appeal dismissed submissions about "the scandal of conflicting decisions" (Rogers v The Queen (1994) 181 CLR 251). I also note that the defendant in Beran would be in the same position as the defendants in these proceedings, in that any claim for contribution would have been determined in accordance with the jury findings in the Sydney Morning Herald.

The matters complained of in Beran, although highly similar, did not consist of one publication endorsing another in the manner found in these proceedings. In addition, the publications were in different geographical locations as one newspaper was mainly published in Melbourne while the other was largely published in Sydney.

The mere fact of similarity, even to a high degree of the kind found in Beran, with another publication where the plaintiff has failed in front of a jury is not sufficient to warrant the striking out of proceedings as an abuse of process.

The unique nature of defamation must be taken into account when considering these principles. It may not be realistic to require a plaintiff who may have been defamed by a number of defendants to sue them all in the one set of proceedings.

Mr Evatt in short written submissions submitted that these proceedings were on all fours with the facts in Beran. However, the proceedings in Beran differ in two vital respects. Firstly, there was no claim in the Supreme Court proceedings, as I understand it, that the publication in The Age newspaper was a republication of the Sydney Morning Herald and secondly, the two publications did not refer to each other to the very high degree that occurred here.

The first issue is whether, by including the claim of republication in the Supreme Court (to which the defendants in these proceedings were not a party), or by reason of the very highly similar nature of the publications, the plaintiff cannot bring proceedings in this court.

The defendants claim that these proceedings could, or should, have been raised in the earlier (concluded) proceedings (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589), even though the defendants in these proceedings were not a party: Yat Tung Investment Co Ltd v Heng Bank Ltd [1975] AC 581 at 590. The defendants argue firstly that the merits of the republication claim were, by agreement, determined in the first action on the merits, and secondly that if they were not, then the degree of similarity is such as to amount to action estoppel: Henderson v Henderson (1843) 3 Hare 100 at 115 (67 ER 313 at 319), as explained in Anshun at 598.

Although I was not addressed as to the similarities relied upon for the second limb to this argument, I note the following similarities and differences: (a) the plaintiff pleaded in the Supreme Court that each conveyed identical imputations and while additional imputations have now been pleaded, there is a high overlap between most of these imputations and those unsuccessfully pleaded against the Daily Telegraph ; (b) they were all published over a period of about 12 hours in the one day; (c) the content of the article in the Daily Telegraph is not only specifically and repeatedly referred to in each of the matters complained of, but its contents are summarised. It is the factual material upon which the defendants' comment is based; (d) as to differences, there is a very limited amount of what might be called new material: (i) Annexure B contains the assertion that the plaintiff said it was not "their own people" who flew into the World Trade Centre towers, comments on his bad grammar and calls on the Minister for Education to stop the plaintiff speaking in schools; (ii) Annexure C refers to him commencing defamation proceedings against newspapers who call him a suburban terrorist; (iii) Annexure D complains the plaintiff when lecturing to students does not mention the events of September 11.

The defendants' first argument is that the verdict for the defendant in the Supreme Court proceedings is amounts to Anshun estoppel.

In argument before me, Mr Lynch submitted that counsel for the plaintiff had waived his client's right to a jury finding concerning what imputations were conveyed by these publications by agreeing that the jury's findings be restricted as to the imputations conveyed in the Daily Telegraph article. The trial judge could not determine what the imputations in each of these articles were, because this was the task of the jury. The task before Kirby J would have been whether Nationwide News Pty Ltd was liable for the republication of its article by the talkback radio hosts who later that same day commented upon the article in the Daily Telegraph.

Mr Lynch submitted that not only had the plaintiff waived his right to separate jury findings concerning any imputations conveyed by these publications, but then sealed his fate by entering into a consent judgment for the defendant for all imputations conveyed.

In practical terms, the only explanation for the plaintiff agreeing to Kirby J determining the issue of republication was that the plaintiff was treating each of the three radio broadcasts as being republications in the same way that they were treated in Griffiths. In other words, the plaintiff consented to a course of conduct of the trial in the Supreme Court which meant that the plaintiff stood - or fell - by the imputations pleaded as arising in the Daily Telegraph. The jury verdict for the defendant on the Daily Telegraph meant that the same finding had to be made concerning the imputations conveyed by the three radio broadcasts. The failure of these imputations for the accordingly means, because of the way the case was conducted in the Supreme Court, that these imputations also failed on the republication argument, to put it simply.

The subordinate Anshun submission is that, if I am against the defendants on this point, the plaintiff has, by commencement, prosecution or abandonment of the proceedings in the Supreme Court, in some way snatched defeat from the jaws of victory and irremediably prejudiced his action in this court by the signing of consent orders in the Supreme Court.

The fact that the plaintiff signed a consent judgment in favour of the defendant for all imputations merely confirms my view that the plaintiff conducted the Supreme Court litigation on the basis that the imputations conveyed in the radio broadcasts were the same as those conveyed by the Daily Telegraph.

The second Anshun submission is that if the merits of the claim for republication were not determined in the Supreme Court on the merits, and the causes of action are not strictly the same, this does not exclude issue estoppel, for the reasons explained in Henderson at 115 and because res judicata is not a technical doctrine but "a fundamental doctrine based on the view that there must be an end to litigation" (Green v Weatherill [1929] 2 Ch 213 at 221 per Maugham J); see Trawl Industries of Australia v Effem Foods Pty Ltd (1992) 36 FCR 406 at 422.

In my view, this argument fails to appreciate the unique nature of defamation. A plaintiff can, subject to statutory restrictions, sue whoever he chooses, for publication or republication, for the reasons explained in Goldsmith v Sperrings (supra). The plaintiff did not have to commence proceedings in the Supreme Court for all the publications. He could have commenced proceedings in the Supreme Court against Nationwide News Pty Limited and not included these other causes of action at all. He was not obliged to litigate all these publications in the same action. When he lost those proceedings, he could have, as Dr Beran did, commenced proceedings in the same or another court, or even another State, subject to challenges based on provisions in the Defamation Act 1974 (NSW). Consequently this challenge must fail.

However, is this action caught by these provisions? This brings me to consider the other basis upon which the defendants submit that these proceedings are an abuse of process, namely by reliance upon provisions in the Defamation Act 1974 designed to prevent abuse of process.

Provisions in the Defamation Act 1974 to prevent collateral use of defamation proceedings

More than any other cause of action, defamation proceedings have been the subject of allegations that cases are brought as "stop writs" or for a collateral purpose. This characteristic, unique to defamation actions, has resulted in the enactment of provisions designed to ensure that defamation actions, for reasons of public policy, are not misused. In a way, this is analogous to seeking a stay for abuse of process.

The parties referred, briefly and in a very general sense, to provisions in the Defamation Act 1974. Mr Lynch adverted to the injustice of multiple proceedings with inconsistent verdicts, to s 9(3), and to the fact that these imputations are little more than a rephrasing of the imputations the Supreme Court jury held the article in the Daily Telegraph did not convey. Mr Evatt referred to the right of a party to amend proceedings at any time.

As I indicated above, the NSW Court of Appeal has now handed down a decision explaining how the statutory duties imposed by ss 56 - 62 Civil Procedure Act 2005 and by ss 3(d), 9(3) and 48A Defamation Act 1974 (NSW) must be taken into account: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [30].

The relevant provisions of the Defamation Act 1974 which are intended to prevent abuse, in my view, would include: (a) Section 3(d): this is the section referred to by the Court of Appeal in Dennis at [30] as the reason for not permitting multiple amendments. The rationale is the avoiding of protracted litigation; (b) Section 9(3): this provision prevents multiple proceedings against the same defendant without the leave of the court, and is a provision relied upon by the defendants in these proceedings. Mr Lynch relied upon s 9(3), but as his client was not a party to the Supreme Court proceedings, this section is of no assistance; (c) Section 9(6)(b): this provision provides that nothing in s 9(3) will affect the powers of the court in the case of "vexatious proceedings or abuse of process". I could not find any cases where a court has considered the use of s 9(6)(b), but as the extract from the Law Reform Commission report No. 13 (see below) shows, the legislators had in mind the prevention of multiple actions or other arguably oppressive claims; (d) Section 48: this section permits the court to take into account, in mitigation of damages, the fact that a party "has brought proceedings for damages" in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings. This permits the bringing of another action, but at a cost. It is interesting to speculate what the impact of bringing another action, but losing it, would be; (e) Section 48A: this section was introduced to impose costs penalties on parties who contravene its provisions by, for example, protracting litigation out of proportion to the damages claimable.

In addition, defamation is one of the few causes of action where failure to commence and prosecute proceedings promptly can result in nominal or even derisory damages being awarded, and the shorter than usual limitation period is also designed to militate against potential abuse of process by the bringing of actions long after relevant events might have been forgotten. It is for this reason that the Court of Appeal in Dennis (at [28]) held that decisions such as Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 which would permit amendments in other causes of action operated not only subject to the Civil Procedure Act 2005 (NSW) but also to the relevant legislation governing defamation actions in this State.

In the "Report of the Law Reform Commission on Defamation" (LRC 13, 1971), the NSW Law Reform Commission explained the reason for a number of the provisions of s 9 at paragraphs 51 - 55. At paragraph 51 and following, the learned authors note the problem of multiplicity of causes of action which attend the dissemination of defamatory matter, including problems of the extent to which more than one action can be brought against the same defendant, problems caused by a multiplicity of actions and problems caused by numerous publications of a libel. At paragraph 51, they specifically note that the law of res judicata is not fitted to impose the appropriate restraint; some actions should require the leave of the court (a reference to s 9(3)) but others might be stayed as vexatious.

When the 1974 Act was before the New South Wales Parliament for its second reading speech, great concern was expressed about the possibility of multiple actions, and a proposal was put for a kind of "single publication" rule to permit only one action against a defendant (Hansard, 27 February 1974, pp 848 - 850). There is a reference to s 9(6) as then becoming otiose (at 849) and being able to be deleted. As it happened, this proposed amendment was negatived (at 850). It is the only reference to s 9(6) that I can find.

However, the language of s 9(6) does not appear to me to be restricted to giving rights to parties who have already been sued. It must also apply to parties who were not joined in the original litigation, if those circumstances, while falling short of res judicata (as the Law Reform Commission note at paragraph 51) are so manifestly unjust as to amount to abuse of process.

No other cause of action is so hedged about by concerns of potential abuse of process as defamation. The intention of the legislators is therefore to ensure, as the Court of Appeal noted in Dennis at [27], that delay, prevarication, complexity and undue length are kept out of defamation litigation as much as possible.

The plaintiff in these proceedings has lost his cause of action against Nationwide News Pty Limited over the publication which is the lion's share of each of these matters complained of. Each of these matters complained of was published within hours of the article in the Daily Telegraph and each of them repeats and endorses what was said in that publication. The fundamental purpose of civil defamation proceedings is to vindicate and protect the reputation of the person defamed (Packer v Meagher [1984] 3 NSWLR 486 at 492E). To unscramble the omelette and award the plaintiff damages for the publication of the same or similar imputations, published on the same day as the publication which a jury held did not defame him, is an exercise in absurdity. It is particularly so in circumstances where the plaintiff was content to regard these additional publications as being publications for which the Daily Telegraph was liable.

I have found that the way the plaintiff conducted the case in the Supreme Court amounts to an Anshun estoppel. Whether or not the plaintiff waived his right to a separate jury verdict, or entered into a consent judgment which amounts to an Anshun estoppel, the plaintiff has brought proceedings in this court which, by reason of the provisions in the Defamation Act 1974 referred to above (and especially s 9(6)) amount, separately, to abuse of process.

Accordingly, these proceedings are an abuse of process and I will make the orders sought in the Notice of Motion.

(1) Proceedings commenced by the plaintiff against the defendants for the broadcasts in schedules A, B and C struck out and dismissed as an abuse of process. (2) Plaintiff pay defendants' costs.

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Schedule "A" Transcript 2UE John Laws Morning Show 10.33am Thursday, 18 August 2005

John Laws: I'll tell you who is red hot - this Mamdouh Habib. Now this fellow I really would like to meet; he claims he was physically tortured by US soldiers during his time in Camp X-rat but, ahhhh, obviously it hasn't done him a whole lot of harm, he must have been referring to the rigorous fitness program they put the terror suspects through at Guantanamo because he is looking fit as fiddle to me, this fellow, and he's come, ahh, come out on Sunday and run (giggles) in the City to Surf. You realise he is trying to get himself a disability pension and he's just run in the City to Surf, uhhh, that's about 14km. He's done that in 82 minutes, not a bad effort for old Mamdouh Habib. He beat 40,000 people and yet he wants a disability pension? This is the same bloke who's been running a battle with Centrelink for a disability pension. The Daily Telegraph reports today that Centrelink have refused to grant him a disability benefit because he hasn't paid back $11,000.00 in overpayments that his family received while he was in Pakistan then Guantanamo Bay; he'd been receiving $470.00 a fortnight since 1999 after quitting his job as a small business owner because he claimed he was depressed. Well, maybe the run on Sunday helped but remember this is the bloke who made admissions that he was in Pakistan prior to the 9/11 attacks but he wouldn't answer any questions about whether or not he'd trained with Al Qaeda. Remember him on 60 Minutes, he was paid a huge quid by Channel Nine to do that interview and that's obviously not helping him in his cause to get sickness benefits out of Centrelink but he's just a, he's (giggles) he's not just blazing a trail as a runner, he's also been out filling the minds of university students with crap like this: "All the trouble comes from the US". This bloke is actually talking in universities in Australia. And we allow it to happen? Brendon Nelson where are you? He's saying stuff like this "All the trouble comes from the US, look at Oklahoma City, who's blowing up the US? - their own people." It wasn't their own people who flew into the World, ahh, Trade Centre Towers. He also warned that Australia should not adopt strict terror laws from the US; he said they can pick you up, take you away for seven days, tell you they're gonna to rape your wife and kids, he's spruiking all this crap to universities to kids who are supposed to be at a place you're supposed to learn. Now what the hell is he doing there?

Hey Mamdouh I don't wanna hear your tale of woe Hey Mamdouh Why did the Yankies let you go go go Something doesn't seem right Very bad your English grammar How come you're not in the slammer Hey my man What were you doing in Afghanistan? Were you up to something shady? Were you doing what you shouldn't do? Are you an insider working for Al Qaeda? Hey Mamdouh Tell us where the truth is at Hey Mandouh But there's bugger all chance of that Will we ever know where the money came from? Why don't you shoot through and take that lawyer with you Mamdouh, are you friend or foe Hey Mamdouh

John Laws: Well we may well ask if he's friend or foe, he's certainly fit whatever he might be, running in the, uhhh, City to Surf, beats 40,000 people but he's knocking on the door of Centrelink saying he needs a disability allowance. I tell you what, who's responsible for inviting morons like this, this fellow, this Mamdouh Habib, to preach this rubbish I've been telling you about in universities. This is occurring in the University of Western Sydney and the Minister of Education should do something about it because it really is an absolute disgrace.

Hey Mamdouh Tell us where the truth is at Hey Mamdouh But there's bugger all chance of that Will we ever know where the money came from? Why don't you shoot through and take that lawyer with you Mamdouh, are you friend or foe? Hey Mamdouh

John Laws: Steve are you there? Steve: Yes, I am John. How are you mate? John Laws: I'm okay, what can I do for you? Steve: This, uhh, Mamdouh Habib…. John Laws: Yep. Steve: … I don't mind at all whether he gets this umm this disability payment. John Laws: (laughs) Yeah. Steve: That's be the first thing. John Laws: (laughs) Yeah, he's uhhh there's no doubt about it he's uuhhh hot as a stove, isn't he? I mean… Steve: He did look, he did look quite fit the other night. John Laws: He sure did and to run in the City to Surf and uhh come in in the top 20% and they say you're disabled and you need a disability pension is a joke. He ought to be laughed out of the country not out of the town.

Schedule "B" Transcript 2UE Steve Price 04.07pm Thursday, 18 August 2005

Steve Price: What sort of mugs are we if Mamdouh Habib gets a disability pension from the Federal Government. Now at the weekend I thought I heard someone tell me that Mamdouh Habib was running in the City to Surf race. It seemed so absurd I forgot about it; then, sure enough, today, he bobs up in the Telegraph in his black and white Adidas tracksuit and sure enough he ran a personal best at the weekend, Mamdouh, of 82 minutes and 25 seconds. Now, from memory that's about 5 seconds faster than I did it in last year but then again I have a job and I can't train all day for a foot race. Mamdouh, on the other hand, says he suffers clinical depression; he's still suffering from being beaten and getting electrical shock treatment, he said, from US soldiers at Camp X-ray. He's even suing the Telegraph and the Herald for calling him a suburban terrorist. Now maybe he has a case, I wouldn't call him a terrorist, I'd call him a bludger. Now he's a leech on Australia, a social security professional. This same bloke was already in Cent, on Centrelink payments when he disappeared overseas to find Islamic schools to send his children to. Now how could he afford a trip to Pakistan or wherever else he went, maybe from the proceeds of the sale of his cleaning business he once had. And his coffee shop. But if that's the case, and he had all this income, was able to travel the world, and can now come back and spend his days training for the City to Surf, how did he get the pension in the first place? And can you imagine how many other Mamdouh Habibs there are out there, blokes capable of running 16km in 80 odd minutes but not able to go to work? Give me a break.

Schedule "C" Transcript 2GB Ray Hadley Morning Show 10.19am Thursday, 18 August 2005

Ray Hadley: I had a number of emails over the past month uhhh about Mamdouh Habib and his battle with Centrelink so we went to Centrelink and they, of course, I think privacy reasons, couldn't tell us any about, anything about their dealings with Mamdouh Habib but then I had a number of emails this week from Monday to alerting me to the fact that while I was at the football on Sunday, old Mamdouh and his son were spotted on Channel 10 running in the City to Surf and all of them were asking the same question, is this man still trying to get his hands on his disability pension. Uhhh now if you look at the picture in today's Telegraph you can see he's a long way to go convincing us he's actually unfit to work. He leads a rather active lifestyle, Mamdouh Habib, he ran the City to Surf in 82 minutes and 25 seconds, despite his claims he suffers with, what he calls, clinical depression. Now he's been locked, according to the Telegraph, in a running battle with Centrelink since he was flown back to Sydney from Cuba last January and incidently that trip, as you know, cost tax payers $225,000.00. On his return Mamdouh Habib demanded access to a disability support pension but was told that he'd have to wait to reimburse tax payers for the $11,000 in over payment. You see, what happened was Mamdouh quit his job as a small business owner in 1999 and began receiving a $470.00 a fortnight pension. He claimed then clinical depression. I'm getting depressed talking about it.

His family continued to receive the payment at the time he was in Pakistan looking for a better school for his children and during his subsequent imprisonment in Guantanamo Bay. And don't forget that there was a very large payment he received from 60 Minutes for the interview that he did which told us and the reports on 60 Minutes absolutely nothing. He's also busy on the lecture circuit going to universities to speak on the topic of war and terrorism. Now I don't think he's going there in the traditional sense invited by the Vice Chancellor; I would imagine that the citizens of the USA are a pack of terrorist. Just yesterday, he told 100 students at the University of Western Sydney that the US, not him, was the real terrorist. He said and I'll quote "All the trouble comes from the US. Look at Oklahoma City; who's blowing up the US, their own people". He neglected to mention September 11 of course. He also warned Australia not to follow strict US terror laws saying and I'll quote Mamdouh Habib "They can pick you up, take you away for seven days, tell you they're going to rape your family, your wife and your kids." He's a half wit. This is the same man who's admitted he was in Pakistan prior to September 11 New York attacks but has refused to answer claims he trained with Al Qaeda in Afghanistan until he's brought before a court. Well, there's a simple thing here. This grub doesn't deserve a disability pension. He shouldn't be speaking to university students on the war and terrorism until he's come clean about his own activities.

Schedule "D" Daily Telegraph Article War on Terror

A stretch but Habib wants his pension
By LUKE McILVEEN

FORMER Guantanamo Bay inmate Mamdouh Habib took part in Sunday's City To Surf fun run despite the fact he is seeking a disability pension from Australian taxpayers.

Yesterday Habib was maintaining his hectic pace, addressing a meeting of radical university students, denouncing the US Government as terrorists and condemning Australia's hardline on suspects.

As our picture shows, the former terror suspect has a long way to go before convincing Centrelink that he is unfit to work.

Mr Habib, who claims he suffers clinical depression, ran the City to Surf last weekend in a personal best of 82 minutes and 25 seconds.

And he showed no signs of fatigue yesterday when he lectured students at the University of Western Sydney on the topic of war and terrorism, when he described the US as a "pack of terrorists".

Mr Habib finished the City to Surf in the top 20 per cent, beating 40,000 other runners.

Mr Habib has been locked in a running battle with Centrelink since he was flown back to Sydney from Cuba last January, a trip which cost taxpayers $225,000.

He demanded access to a disability pension but was told he would have to reimburse taxpayers for $11,000 in overpayments.

In 1999, claiming depression, Mr Habib quit his job as a smaller business owner and began receiving $470 a fortnight.

His family continued to receive the payments while he was in Pakistan and during his subsequent imprisonment in Guantanamo Bay.

Mr Habib's lawyer Peter Erman told the Daily Telegraph his client was still "working through issues" with Centrelink following a six-figure payment for an interview with the 60 Minutes program. Mr Habib claimed he suffered physical and mental torture at the hands of US soldiers at Camp X-Ray. He alleged he was routinely beaten unconscious, kicked and tormented with electric shocks.

He told about 100 students at a UWS rally yesterday that the US, not him, was the "real terrorists".

"All the trouble comes from the US. Look at Oklahoma City, who is blowing up the US? Their own people," he said.

He also warned Australia not to follow strict US terror laws saying: "They can pick you up, take you away for seven days… tell you they are going to rape your wife and kids."

Mr Habib has become a regular on the speaking circuit, addressing University of Technology students last month and a rally in March to mark the International Day of Action.

Mr Habib has admitted he was in Pakistan prior to the September 11 New York attacks but has refused to answer claims he trained with al Qaeda in Afghanistan until brought before a court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Defamation Act 1974(NSW)

CITATION: Habib v Radio 2UE Pty Limited [2008] NSWDC 59

Arthur Harris v 718932 Pty Ltd (2003) 56 NSWLR 276 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Goldsmith v Sperrings [1977] 1 WLR 478 Green v Weatherill [1929] 2 Ch 213 Griffith & Ors v Australian Broadcasting Corporation & Ors [2003] NSWSC 298 Habib v Nationwide News Pty Limited [2007] HCATrans 802 (14 December 2007) Habib v Nationwide News Pty Limited [2007] NSWCA 91 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78 Jones v Sutton (2004) 61 NSWLR 614 Lee v Kim [2006] NSWCA 384 Maple v David Syme & Co Ltd [1974] 1 NSWLR 290 CASES CITED: McWhirter v Manning ("The Times", 30 October 1954) Meckiff v Simpson [1968] VR 62 Packer v Meagher [1984] 3 NSWLR 486 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Rogers v The Queen (1994) 181 CLR 251 Ronald v Harper (1910) 11 CLR 63 Sims v Wran [1984] 1 NSWLR 317 Speight v Gosnay (1890) 60 LJQB 231 State Bank of NSW Ltd v Stenhouse & Ors (Supreme Court of New South Wales, 18 February 1999, unreported) The Age Corporation v Beran [2005] NSWCA 289 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd [1992] 35 FCR 406 Williams v Hunt [1905] 1 KB 512 Williams v John Fairfax Group Pty Ltd (Supreme Court of New South Wales, 20 November 1991, Hunt J, unreported) Yat Tung Investment Co Ltd v Heng Bank Ltd [1975] AC 581

Habib v Radio 2UE Pty Limited

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